Elective Affinities: Experience, Ethics, Technology, Collaboration

Afterword Elective Affinities: Experience, Ethics, Technology, Collaboration I believe that the community’s duty to education is, therefore, its paramount moral duty. … [T]hrough education society can formulate its own purposes, can organize its own means and resources, and thus shape itself with definiteness and economy in the direction in which it wishes to move. Dewey (EW, 5, p. 94) Spaces have values. Lessig (1999, p. 64) Conclusion This final chapter takes heed of Bourdieu’s timely admonition that we should not ‘fall into the trap of offering a programme’ (Bourdieu, 1998, p. 56). A general programme of action, a development plan – these are rarely applicable to specific local circumstances. If we are to take the lessons of situationists, phenomenologists and pragmatists, we should perhaps advocate methods rather than plans.1 I said in the Introduction that my approach was sympathetic to a pragmatist approach to legal education and strongly influenced by John Dewey. All of the approaches described in Parts 1 and 3 are aligned on this perspective. My interpretation of the failure of realist experiments in chapter four also contributes to this perspective. But in general terms, what might pragmatist legal education look like, and how could it transform legal education? We can begin to think about this by taking as a definition of contemporary legal education William Twining’s admirably concise – and over 25 years later, still relevant – summary of the scene: In all Western societies law schools are typically in a tug of war between three aspirations: to be accepted as full members of the community of higher learning; to be relatively detached, but nonetheless engaged, critics and censors of law in society; and to be service-institutions for a profession which is itself caught between noble 1 Compare also the position of the blogger who deliberately has no hosted blog listed on the blogdex, but who instead comment-blogs on other blogs, leaving a conceptual trail across the internet. See Matthew (2003). Maharg.indb 285 12/6/07 16:18:17 286 Transforming Legal Education ideals, lucrative service of powerful interests and unromantic cleaning up of society’s messes.2 Twining describes the triple bind we find ourselves in. Where might we start with this situation? A strong pragmatism would probably plan to start with the last phrase – with society’s messes. What are they, who are involved, what are the contributing problems, how are lawyers involved in them, how can students begin to understand the causes and effects in their complexity? Next, and working back, their ‘cleaning up’ resolution, via clinic, placement and other forms of experiential learning we have not yet really considered – solutions for whom, when, and under what conditions? At the same time one could analysis the source and nature of those ‘powerful interests’, the noble as well as ignoble ideals, and so on – moving, in other words, from situated practice to critical framing. In general, a pragmatist programme of study would start with situated practice – the experience of law in society – not a case-dialogue about this, nor the resumption of client or victim narratives into the formal discourse of judgment and due process, not even an educational taxonomy of skills and knowledge components, but the mess itself. It would enable students and staff not merely to achieve critical framing of this experience by working its way back to legal science, but back again to the social situation in a to-fro motion. This approach is nothing new: problem-based learning is one version of it. How might we better understand it and operationalise it as a method? The following are observations as to how we might begin to transform our educational practice in four key areas: experience, ethics, technology, collaboration. Experience Perhaps the first thing we ought to do is stop using the phrase ‘teach them to think like lawyers’. As Rhode pointed out, all too often this means teaching students to think like law professors (Rhode, 2000, p. 36). After half a century of legal educational and jurisprudential research and comment there is no concept in this phrase that will stand scrutiny for long. We need to subject it to post mortem examination, before burying it, preferably in the same lair as the black-letter tradition.3 More seriously, experiential learning is the foundation for the development both of professionalism and a commitment to democratic behaviour, whether in clinic, simulation or some other method. But as Dewey realised, commitment to democracy means embodying that commitment in the educational forms and 2 Twining (1982, p. 2) quoted in Boon and Levin (1999, p. 154). 3 Some may be more hopeful of resurrecting the corpse – Moran (2003), after all, has performed miracles with the ‘reasonable person’. But the prognosis is not good – the phrase has shown no vital signs for some time now. Maharg.indb 286 12/6/07 16:18:17 Elective Affinities: Experience, Ethics, Technology, Collaboration 287 values we use everyday within education. Ralph Sleeper makes this point well: what mattered for Dewey in all human activity, he observed, was ‘the emergence of logical forms from the practice of inquiry’ (Sleeper, 1986, p. 202, my emphasis). Dewey’s radical form of pragmatism was profoundly democratic because deep within its experiential method, his pragmatism possessed a ‘ground-map whereby [social] inequities could be identified and diagnosed, as well as a method for resolving them’ (p. 202). It is also a map for educational transformation, as radical now as it was over a century ago in the Chicago Laboratory School and as relevant to us as it was to the realist experiments at Columbia. How might we embed such experiential experiments in our curricula? Following Latour’s interpretation of Pasteur (outlined in Chapter 2) and the example of Dewey’s Laboratory School, our law schools should be our labs. This is what we have tried to do on the Diploma in Legal Practice in the GGSL: it is one of our key guiding principles. We need to engage in small-scale radical pilots, leading to larger trials, paying careful attention to how the contexts of law school, other disciplines, traineeship, legal community and the wider social community among many vectors affect our implementations. This is one way in which transformation can be brought about. It requires constant attention to emergent experiences and also (to adopt the forceful words of Garfinkel) the vexed problem of ‘the practical objectivity and practical observability of practical actions and practical reasoning’ (Garfinkel, 1991, p. 11). The primacy of experiential learning has long been recognised in other disciplines, and acted upon. As the recent Carnegie Foundation report on legal education in the US has re-asserted, we need to return to the fundamentals of such experiential learning, and learn from other professions, other disciplines.4 The authors point out that we still tend to view learning ‘in an additive way, not an integrative way’ (2007, p. 9) when what we need is deep re-consideration of the curriculum so that students can move freely ‘back and forth between understanding and enactment, experience and analysis’ (2007, p. 10): [i]f legal education were serious about such a goal, it would require a bolder, more integrated approach that would build on its strengths and address its most serious limitations. In pursuing such a goal, law schools could also benefit from the approaches used in education of physicians, teachers, nurses, engineers and clergy, as well as from research on learning. (2007, p. 6) This of course has implications for the teaching and learning of ethical behaviour: 4 See Sullivan et al. (2007). The report was published in full in late February 2007, just after this text went to print, and therefore I rely on the extensive 16-page summary provided on the Carnegie Foundation’s website. The report is based of course upon legal education in US and Canadian law schools, but it contains many perceptive comments on legal education that most mixed and common law jurisdictions could learn from. Maharg.indb 287 12/6/07 16:18:17 288 Transforming Legal Education [i]n their all-consuming first year [of the JD degree], students are told to set aside their desire for justice. They are warned not to let their moral concerns or compassion for the people in the cases they discuss cloud their legal analyses … The fact that moral concerns are reintroduced only haphazardly conveys a cynical impression of the law that is rarely intended. (2007, p. 8) Ethics Towards the end of Chapter 8 I outlined how professionalism could be explored and learned within the transactional learning environment. Other professions have for some time now set about embedding the learning and practice of professionalism in their schools. David Stern, for instance, has argued – rightly I think – that the lists of values that describe what a profession regards as professionalism are insufficient because this implies a dialogue of practitioner with static, individuated qualities or values. Rather, professionalism lies in a much more dynamic ethical encounter, in the negotiation of the conflict of those static values, and in the management of that conflict (Ginsburg and Stern and Stern, 2006). The idea takes us back to Ferguson’s position, negotiated in tension between the Stoic virtue tradition and the commercial values of contemporary Scotland. To define what our ethical values are, we must look beyond regulatory codes to the analysis of the broken middle, the fundamental relationship between ethics and law, and enact that relationship within the law school. It is, as we saw, a negotiation of the boundaries of the soul and the city, and their perennial anxiety.

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